NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 12 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GYORGY MATRAI, and M.M., a MINOR, No. 21-15084

Plaintiff-Appellant, D.C. No. 3:20-cv-05241-MMC

v.

MEMORANDUM*

HON. JONI T. HIRAMOTO and

MICHELLE GONZANA URIARTE,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding

Submitted October 4, 2021** San Francisco, California

Before: FRIEDLAND and CLIFTON, Circuit Judges, and MCSHANE,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36–3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). *** The Honorable Michael J. McShane, United States District Judge for the District of Oregon, sitting by designation. In his claim brought under 42 U.S.C. § 1983, Plaintiff–Appellant Gyorgy

Matrai alleges that a child abduction prevention order requiring him to post a

$5,000,000 bond before visiting his minor son violated his substantive due process

rights.1 Matrai names the Honorable Joni T. Hiramoto, the judge who entered the

child abduction prevention order, as the defendant. In a second claim, Matrai names

the child’s mother as a defendant, alleging a right to access his son under the Hague

Convention on the Civil Aspects of International Child Abduction through its

implementing statute, 22 U.S.C. §§ 9001-9011 (the “ICARA”). Matrai challenges

the district court’s dismissal of both claims.2 We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

1. As an initial matter, Judge Hiramoto argues that because she now presides

over a criminal calendar and is not currently hearing domestic relation cases,

Matrai’s claim for injunctive relief prohibiting her from issuing or enforcing the

bond requirement is moot.3 The order at issue here, however, was issued by Judge

Hiramoto and remains in effect. Review of a judge’s order cannot be evaded by

simply moving the judge to another department within the courthouse. In any event,

1 Matrai brought the claims individually and on behalf of his son. 2 Matrai does not appeal the district court’s dismissal of his claims for declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202. 3 Matrai and Judge Hiramoto each move for judicial notice of certain official information posted on government websites. The motions for judicial notice are GRANTED. Matrai’s motion to strike Judge Hiramoto’s Answering Brief is

DENIED.

2 Federal Rule of Appellate Procedure 43(c)(2) provides: “When a public officer who

is a party to an appeal or other proceeding in an official capacity dies, resigns, or

otherwise ceases to hold office, the action does not abate. The public officer’s

successor is automatically substituted as a party.”

2. Matrai argues the district court erred when it dismissed his § 1983 claim for

injunctive relief based on abstention under Younger v. Harris, 401 U.S. 37 (1971).

Here, Matrai argues the bond requirement violated his fundamental due process right

to maintain a familial relationship with his son, and he seeks an injunction

prohibiting enforcement of the order.

“We review a district court’s decision to abstain under Younger de novo and

do not defer to the view of the district judge.” Nationwide Biweekly Admin., Inc. v.

Owen, 873 F.3d 716, 727 (9th Cir. 2017). “Abstention in civil cases ‘is appropriate

only when the state proceedings: (1) are ongoing, (2) are quasi-criminal enforcement

actions or involve a state’s interest in enforcing the orders and judgments of its

courts, (3) implicate an important state interest, and (4) allow litigants to raise federal

challenges.’” Cook v. Harding, 879 F.3d 1035, 1039 (9th Cir. 2018) (quoting

ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir.

2014)). The parties agree the state proceedings are ongoing.

The challenged bond requirement at issue here falls squarely “within the

category of cases that involve ‘the State’s interest in enforcing the orders and

3 judgments of its courts.’” Id. at 1040–41 (quoting ReadyLink, 754 F.3d at 759). The

child abduction prevention order Matrai challenges, like a court’s contempt power,

“lies at the core of the administration of a State’s judicial system.” Juidice v. Vail,

430 U.S. 327, 335 (1977) (citation omitted). The State has a valid interest in taking

precautions, such as requiring a bond prior to visitation, to ensure that one parent

does not abduct a child and flee to a more favorable jurisdiction during divorce

proceedings. See Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (recognizing that in

custody proceedings, “[t]he State, of course, has a duty of the highest order to protect

the interests of minor children”). As with contempt proceedings, the bond

requirement Matrai challenges “stands in aid of the authority of the judicial system,

so that its orders and judgments are not rendered nugatory.” Juidice, 430 U.S. at 336

n.12. The Supreme Court’s reasoning that Younger precluded federal courts from

considering a constitutional challenge to a state court’s process for enforcing a

judgment is instructive when considering whether Younger applies here:

The reasoning of Juidice controls here. That case rests on the importance to the States of enforcing the orders and judgments of their courts. There is little difference between the State’s interest in forcing persons to transfer property in response to a court’s judgment and in forcing persons to respond to the court’s process on pain of contempt. Both Juidice and this case involve challenges to the processes by which the State compels compliance with the judgments of its courts. Not only would federal injunctions in such cases interfere with the execution of state judgments, but they would do so on grounds that challenge the very process by which those judgments were obtained. So long as those challenges relate to pending state proceedings, proper respect for the

4 ability of state courts to resolve federal questions presented in state- court litigation mandates that the federal court stay its hand. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13–14 (1987) (footnotes omitted).

Additionally, there is no indication that Matrai is precluded from raising, in

the underlying case, the constitutional arguments he brings here. Judge Hiramoto

entered the bond order only after hearing essentially unchallenged testimony from

Matrai’s wife that, despite what the couple’s tax returns indicated, Matrai had access

to at least $10,000,000.4 Six months later, Matrai moved to set aside Judge

Hiramoto’s order. Additionally, Matrai filed this federal action seeking to enjoin

enforcement of the order. Matrai’s argument that the delay in resolving his motion

to set aside in the underlying action indicates he was effectively precluded from

raising his constitutional claims below is meritless. After all, “the date for

determining whether Younger applies ‘is the date the federal action is filed.’”

ReadyLink, 754 F.3d at 759 (quoting Gilbertson v. Albright, 381 F.3d 965, 969 n.4

(9th Cir. 2004) (en banc)). And nothing in this record indicates Matrai was precluded

from raising his constitutional arguments in the state family court proceedings or in

an appeal from them. As Matrai fails to demonstrate that he was barred or precluded

4 Matrai fired his attorney the day before the state court hearing and did not appear at the hearing. Matrai’s wife testified that Matrai owned a $10,000,000 bond in Germany and that his company bought the couple’s home for $3,000,000 in cash.

5 from raising his federal arguments in state court, he failed to meet his burden as to

the fourth element of the Younger analysis. Pennzoil Co., 481 U.S. at 14.

Matrai next argues that even if the elements of Younger are met, an exception

to abstention still applies because “the danger of irreparable loss is both great and

immediate.” World Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d

1079, 1082 (9th Cir. 1987). That narrow exception, however, applies “where the

District Court properly finds that the state proceeding is motivated by a desire to

harass or is conducted in bad faith.” Huffman v. Pursue, Ltd., 420 U.S. 592, 611

(1975). The district court here made no such finding. Additionally, Matrai does not

allege, or even argue, that Judge Hiramoto acted in bad faith in entering the bond

order. To the contrary, the transcript of the hearing confirms that after Matrai failed

to appear at the hearing, Judge Hiramoto set the bond amount based on the sworn

testimony from Matrai’s wife that, despite tax returns indicating relatively modest

means, Matrai had access to over $10,000,000 and had purchased their $3,000,000

home in cash.

Because Younger abstention applies and no exceptions exist, and because

Matrai seeks only injunctive relief, as opposed to damages, on the § 1983 claim, the

district court did not err in dismissing that claim. See Gilbertson, 381 F.3d at 981

(noting that when Younger applies to a claim seeking only injunctive relief, the court

must “permanently” abstain by dismissing the action).

6 3. Matrai’s claim that his access rights under the Hague Convention have been

violated is not ripe. Matrai argues that the district court failed to recognize his access

rights created under the law of the United Kingdom. Typically, it is the law of the

child’s habitual residence that governs Hague Convention claims, see Monasky v.

Taglieri, 140 S. Ct. 719, 723 (2020); Hague Convention on the Civil Aspects of

International Child Abduction, art. 3, Oct. 25, 1980, T.I.A.S. No. 11670, 1343

U.N.T.S. 89, and there is no dispute that the child here habitually resides in the

United States, not the United Kingdom.

We recognize, however, that Matrai asserts an access claim, not the more

commonly asserted custody or return claim. Even assuming the law of the United

Kingdom was relevant to Matrai’s access claim, Matrai initially did not dispute

evidence presented in the state family court proceedings that he had access to funds

to post a bond for visitation. He then moved to set aside the child abduction

prevention order within the state court system, but he did not wait for the state court

to resolve that motion before filing this federal action. Under these circumstances,

any claim that his access rights under the Hague Convention were violated is not

ripe. See Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624, 630 (9th Cir. 1989).

Although we agree that dismissal was appropriate, we also conclude that

dismissal of the case with prejudice was an abuse of discretion. See Eminence

Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Dismissal based

7 on ripeness or on Younger abstention is not a determination on the merits but rather

a decision reflecting lack of jurisdiction, Canatella v. California, 404 F.3d 1106,

1113 (9th Cir. 2005); Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d 1134,

1139 (9th Cir. 2000), and should thus be without prejudice, see Beltran v. California,

871 F.2d 777, 782 (9th Cir. 1988). We therefore affirm the district court’s dismissal

of this case but remand with instructions that the district court enter a dismissal

without prejudice.

AFFIRMED and REMANDED with instructions to enter dismissal without

prejudice.

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